Leahy v. Kontos

Jul 22, 1985
Versions:112 A.D.2d 356

In a consolidated negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Nassau County (Berman, J.), dated July 11, 1984, which, upon the motion of the defendants for judgment as a matter of law following the conclusion of the presentation of evidence by the parties, dismissed his complaint for failure to make out a prima facie case.

Judgment reversed, on the law, motion denied, and new trial granted with costs to abide the event.

*357This action arises out of a two-vehicle accident involving cars driven by plaintiff and defendant Kontos during the evening of July 25, 1979, on the Northern State Parkway in Suffolk County. Plaintiff and his passenger testified that on the night of the accident plaintiff’s car came to a complete stop before entering the parkway. Plaintiff asserted that when he accelerated, the car skidded and spun out of control across both eastbound lanes of the roadway and came to rest with its right rear wheel on the median divider. Seconds later it was struck by the Kontos vehicle which had been traveling in the eastbound lanes. Plaintiff seeks damages for negligence from Kontos, and from defendant Triboro Neon and Service Corp. for its negligence in the operation and maintenance of a roadway construction site near the accident scene.

Pursuant to the very limited standard of review in this case, in which we must afford plaintiff the benefit of every favorable inference which can reasonably be drawn from the evidence, and despite the inherent improbability of plaintiff’s version of the facts and the inconsistencies permeating plaintiff’s presentation of evidence, we conclude that he should have been given the opportunity to have the jury determine the extent, if any, to which defendants’ actions contributed to the happening of the accident (see, Santiago v Steinway Trucking, 97 AD2d 753). Lazer, J. P., Gibbons, Thompson and Kunzeman, JJ., concur.